Business method patents continue to fail patentable-subject-matter scrutiny at the Federal Circuit

Today’s In re Healy decision (nonprecedential) is yet another example of business method patents failing at the Federal Circuit. The application at issue is directed to “systems and methods ‘for discovering and publishing clearing prices of commodities within exchange markets.'” This sounds like a fundamental economic process to me! Although the claim was lengthy, covering about three full pages of the opinion, the Federal Circuit had an easy time striking this application down. At step one, the Federal Circuit cited to the Supreme Court’s Alice decision as well as its own Bancorp decision and stated, “[b]oth the Supreme Court and this court have repeatedly affirmed that analogous systems and methods are patent ineligible.” The applicant then argued that the claimed invention provides technical improvements. The Federal Circuit responded by stating that the applicant does not explain how the claimed invention provides such improvements. The Federal Circuit concluded that “any purported improvements from the claimed invention are simply improvements to the abstract idea, not specific improvements to the underlying technology.”

I have seen no business method patents pass section 101 muster at the Federal Circuit post-Alice. When people ask me if they should even pursue patents on such inventions, I always explain how they would be swimming upstream (to say it mildly), but it’s not impossible. If the specification and claims could be drafted such that, for example, a technological improvement were disclosed and claimed, the claimed invention could potentially survive scrutiny at both the PTO and the Federal Circuit, although I suspect it would be a tough battle.